The regulations of the consumer law which in Germany became effective on 13 June 2014 are still open to interpretative doubt. One of the issues requiring an explanation is whether a promotional brochure of several pages consisting also of an order form should contain precise information about the right to withdraw from an agreement.
Pursuant to § 312d section 1 of the German civil code (BGB), an entrepreneur shall be obligated to inform a consumer still before an agreement has been concluded in a way clear, understandable and suitable for the means of remote communication used about the right to withdraw from the agreement and to make a specimen statement on the withdrawal from the agreement available to the consumer.
The leaflet which was analyzed by the National Court in Wuppertal admittedly pointed out that a consumer had the right to withdraw from the agreement, but did not contain information about conditions, time limit and method of exercising that right. There was also no name, address and telephone number of the person to whom the statement on withdrawal should be submitted, as well as a specimen of such statement.
The Court stated that in case of a printed promotional leaflet it cannot be assumed in advance that it has a limited space and for this reason should be privileged. The shortage of space for precise information results from the entrepreneur’s decision about dimensions of the leaflet, and not from technical factors of this type of media.
The aforementioned judgment is an important hint for entrepreneurs advertising their goods by means of this type of carriers – the size of the leaflet will have to be adjusted so that precise information about the right to withdraw from an agreement could be printed.
- judgment of the National Court in Wuppertal of 21 July 2015, file reference 11 O 40/15